Butt & Ors v Reading Borough Council

An employment tribunal must construe an equal-pay claim form objectively and in its factual context. General and imperfect drafting may nevertheless include a claim for an earlier period where the words used, read fairly, identify employment and work undertaken during the preceding six years.

A second claim which overlaps an earlier claim is ordinarily liable to be struck out as an abuse of process. It is not abusive, however, where the earlier claims are jurisdictionally defective and the claimant ultimately pursues only the second claims.

Seven employees appealed against an Employment Tribunal decision dated 8 August 2018, sent to the parties on 21 August 2018. The Tribunal held that equal-pay claims presented in 2011 did not include complaints concerning the period before 1 May 2011.

The employees had also presented earlier equal-pay claims in 2008. Those claims were later accepted to have been filed one day prematurely, so that the Tribunal lacked jurisdiction. The council cross-appealed, contending that any pre-May 2011 element of the 2011 claims was an abuse of process.

The central issues were the proper construction of the 2011 claim forms and, if they covered the earlier period, whether their pursuit should be struck out.

1. Appeal allowed; cross-appeal dismissed. The claim forms, although poorly drafted and principally directed to the pay structure introduced on 1 May 2011, included claims concerning the preceding period.
2. The question was one of construction. The words of a statement of case are construed objectively and in context. The decisive wording said that the claim related to all posts held or jobs done in the preceding six years, subject to a COT3 or compromise agreement. Read naturally, it claimed sums said to be due for work performed during that period.
3. The reference to six years was consistent with the arrears period in section 132 of the Equality Act 2010. It also gave content to otherwise undefined references in the pleadings to the relevant period and period of claim. The council's alternative reading required a strained construction.
4. The existence of the earlier proceedings might have made an overlapping claim unexpected, but could not displace the language actually used. The council's response provided some support because it recognised that the later claim might cover the earlier period, though the conclusion did not depend on that response.
5. Duplicative proceedings will ordinarily be an abuse of process and may be struck out. Here, however, the earlier claims were jurisdictionally defective. By the time abuse was considered, the employees sought to pursue only the later claims. Their conduct was therefore not properly characterised as abusive.

• Employment Appeal Tribunal: allowed the employees’ appeal and dismissed the council’s cross-appeal: [2019] UKEAT 0040_19_0410.
• Employment Tribunal, Reading: held that the 2011 claims did not include equal-pay complaints predating 1 May 2011; it indicated that, if wrong, it would not strike out any overlap as an abuse of process.